Ditlow v. Volpe, Civ. A. No. 2370-72.

• Decision Date: 12 June 1973
• Docket Number: Civ. A. No. 2370-72.
• Citation: 362 F. Supp. 1321
• Parties: Clarence DITLOW and Ralph Nader v. John A. VOLPE, Secretary of Transportation, et al.
• Court: U.S. District Court — District of Columbia

362 F. Supp. 1321

Clarence DITLOW and Ralph Nader v. John A. VOLPE, Secretary of Transportation, et al.

Civ. A. No. 2370-72.

United States District Court, District of Columbia.

June 12, 1973.

Ronald L. Plesser, Washington, D. C., for plaintiffs.

William H. Schweitzer, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., District Judge.

This is an action under the Freedom of Information Act, 5 U.S.C. § 552, presently before the Court on cross-motions for summary judgment. Plaintiffs seek public disclosure of certain records of the National Highway Traffic Safety Administration (NHTSA) which relate to investigation of safety defects in new automobiles. Plaintiffs seek (1) all correspondence between NHTSA and the investigated party (i.e. auto manufacturer) in connection with pending safety defect investigations, (2) Book D of the submission of General Motors Corporation to NHTSA of October 1970, and (3) a Report of NHTSA's Office of Standards Enforcement concerning the enforcibility of Federal Motor Vehicle Safety Standards. Items (2) and (3), Book D and the Report on standards enforcibility, were examined by the Court in camera. The various legal contentions will be considered ad seriatim.

I

Correspondence between NHTSA and Investigated Parties in connection with pending Defect Investigations.

Defendants rely upon three separate exemptions to support the contention that this correspondence is exempt from disclosure under the Freedom of Information Act. The first claim is based on exemption 3, 5 U.S.C. § 552(b)(3), which protects matters "specifically exempted from disclosure by statute." Section 112(e) of the National Highway and Traffic Safety Act, 15 U.S.C. § 1401(e), provides that

All information reported to or otherwise obtained by the Secretary . . . pursuant to safety defect investigations which information contains or relates to a trade secret or other matter referred to in Section 1905, of Title 18, shall be considered confidential for the purpose of that section. . . .

Section 1905 of Title 18 of the United States Code is the criminal provision authorizing punishment for disclosure "to any extent not authorized by law" by Federal employees of information obtained in the course of official duties concerning "trade secrets, processes, operations, style of work, or apparatus, or the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures" of any person.¹

The argument that Section 1905 is a blanket exception under exemption 3 of the Freedom of Information Act has been previously raised and rejected in this Circuit:

Unlike other statutes which specifically define the range of disclosable information, e.g. 26 U.S.C. § 6103 (1964), as amended (Supp. IV, 1969), Section 1905 merely creates a criminal sanction for the release of "confidential information." Since this type of information is already protected from disclosure under the Act by § 552(b) (4), Section 1905 should not be read to expand this exemption, especially because the Act requires that exemptions be narrowly construed. 5 U.S.C. § 552(c) (Supp. IV, 1969).

Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578, 580 n. 5, (1970)². The question arises whether specific reference to Section 1905 in the National Highway and Traffic Safety Act, supra, dictates a different result. Section 112(e), however, creates, confidentiality only "for the purpose of that section," i.e. Section 1905. Congress thus intended to allow confidentiality only as already provided for in Section 1905. There is no indication in the statute or the legislative history³ of intent to create a special, broader confidentiality for auto safety information than that available under exemption 4 of the Freedom of Information Act. Section 112(e) thus harmonizes with exemption 4 in protecting trade secrets and privileged or confidential financial or commercial information. In this case, exemption 3 is co-extensive with exemption 4, which is claimed by the Defendants as a separate ground for nondisclosure.

Exemption 4, 5 U.S.C. § 552(b)(4), exempts from disclosure trade secrets and privileged or confidential commercial or financial information. These are separate elements and

this section exempts only (1) trade secrets and (2) information which is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. The exemption given by the Congress does not apply to information which does not satisfy the three requirements stated in the statute.

Getman v. N.L.R.B., 146 U.S.App.D.C. 209, 450 F.2d 670, 673 (1971) quoting Consumers Union of United States, Inc. v. Veterans Administration, 301 F.Supp. 796, 802 (S.D.N.Y.1969). Further, a bare claim or promise of confidentiality will not suffice⁴ the materials sought must be "independently confidential" based on their contents,⁵ i.e. not otherwise subject to public disclosure⁶ and entitled to a reasonable expectation of privacy.⁷

Defendants contend that all of the correspondence with auto manufacturers is "quite clearly commercial."⁸ Assuming, without deciding, that this broad contention is accurate, there still has been no showing that the "commercial" information in each item or set of correspondence is independently confidential. Defendants have not come forward with a specific explanation of the confidential nature of the correspondence, nor even attempted to do so in the most general terms.⁹

The exemption on which Defendants primarily rely with regard to correspondence in the open investigative files is exemption 7, for "investigatory files compiled for law enforcement purposes . . ." 5 U.S.C. § 552(b)(7). There is no dispute that correspondence with the investigated party is placed by NHTSA in its open "investigative" file. Yet "the policy of the Act requires that the disclosure requirement be construed broadly, the exemption narrowly"¹⁰ and the investigatory "label" applied by the agency is not controlling.¹¹ While the open files here involved could conceivably lead to a civil enforcement proceeding,¹² the agency has not made the required showing "that disclosure of the files sought is likely to create a concrete prospect of serious harm to its law enforcement efficiency." Weisberg v. Department of Justice, No. 71-1026 (D. C.Cir., Feb. 28, 1973), Slip Opinion at 8. Although labelled "investigative", the correspondence here sought is correspondence between the agency and the auto manufacturer being investigated. There are no apparent problems with confidential sources, premature relevation of suspects and the like. And most certainly in the present case there is no problem about discovery of the information by the subject of the investigation,¹³ since the auto manufacturer is either the recipient or the source of all the correspondence here sought. "Disclosure of materials already in the hands of potential parties to law enforcement proceedings can in no way be said to interfere with an agency's legitimate law enforcement functions and, therefore, such material is not within the exception of § 552(b)(7)."¹⁴ The "investigative files" exemption is therefore unavailable here for correspondence between the agency and the investigated party.

II

Book D of the submission of General Motors Corporation to NHTSA.

Book D is one volume of a six volume submission (Books A-F) made by the General Motors Corporation (GM) on October 1, 1970, in connection with the now terminated defect investigation of heaters in Corvair automobiles. Books A, B, C, E and F of that submission have been made public. Book D contains materials relating to open lawsuits involving GM. A portion of the book containing pleadings and related documents has been disclosed, with the consent of GM.

Defendants describe the portion of Book D withheld as consisting of "memoranda containing statements of General Motors legal position" relating to open lawsuits "and factual information developed . . . in preparation for trial."¹⁵ Upon this description the Court expected that Book D contained substantive legal memoranda and investigative reports. In fact, in camera review reveals that Book D now consists of six (6) pages, each page containing a brief one paragraph description of a lawsuit. The paragraph consists of a statement that the lawsuit is contested, its procedural status, a succinct statement of the allegations of the Complaint, and a statement of "General Motors' Position In the Lawsuit." In each case, General Motors' position is to deny liability. The "factual information" contained in five of the statements is a cryptic exculpatory report, such as "General Motors' engineers found no basis for the Plaintiff's allegations."¹⁶

This is a case where lawyer's verbiage has transformed six insignificant paragraphs into a major bone of contention. The only thing more puzzling than why Plaintiffs would want these documents is why Defendants refuse to disclose them. Of course, Plaintiffs had no certain knowledge of the contents and doubtless were incited by the great efforts expended by the Government to prevent disclosure. To this Court the struggle over Book D seems a monumental waste of effort by all concerned, apparently motivated by GM's "request" that the documents remain confidential. Yet the agency must know by now that it cannot withhold by fiat that which the law requires be disclosed.¹⁷

Defendants claim that two statutory exemptions from disclosure are available for Book D: exemption 4, 5 U.S.C. § 552(b)(4), for privileged or confidential commercial or financial information, and exemption 7, 5 U.S.C. § 552(b)(7), for investigative files. Both of these exemptions, however, require specific showings as to each item: for exemption 4 that the item is independently confidential,¹⁸ or for exemption 7 that disclosure would prejudice law enforcement activity.¹⁹ Defendants have not even attempted such a...